United States of America v. Richard Armand Pindle, a/k/a P

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4459
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ARMAND PINDLE, a/k/a P,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00287-LO-1)
Submitted: October 18, 2010 Decided: November 19, 2010
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Iweanoge, II, IWEANOGE LAW CENTER, Washington, D.C., for
Appellant. Neil H. MacBride, United States Attorney, Justin K.
Gelfand, Special Assistant United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Richard Armand Pindle was indicted on seven counts of
Hobbs Act robbery, 18 U.S.C. § 1951 (2006) (Counts One-Seven),
seven counts of using and carrying a firearm during a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii) (2006) (Counts Eight-
Fourteen), and one count of possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Fifteen).
Counts One-Fourteen related to a series of convenience store
robberies that occurred in Northern Virginia during April, May,
and August 2006. The jury found Pindle guilty on Counts Seven
and Fourteen, which related to the August 20 robbery of a
Vocelli’s Pizza delivery man. The district court declared a
mistrial on the remaining counts because the jury was unable to
reach a verdict on those counts. Pindle waived a jury trial on
Count Fifteen, and the district court found him guilty on that
count.
Pindle was sentenced to 144 months on Count Seven,
eighty-four months on Count Fourteen, and seventy-eight months
on Count Fifteen. The sentences on Counts Seven and Fifteen run
concurrently, and the sentence on Count Fourteen runs
consecutively to the concurrent sentence. Pindle appeals his
convictions and sentence.

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I
Pindle first contends that the evidence was
insufficient to convict him of the three offenses. A jury’s
verdict “must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
“Substantial evidence is that evidence which a ‘reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc)). We review both direct and circumstantial
evidence and permit the “[G]overnment the benefit of all
reasonable inferences from the facts proven to those sought to
be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). We do not review the credibility of witnesses,
and we assume the factfinder resolved all contradictions in the
testimony in favor of the Government. United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002).
Hobbs Act Robbery. “The Hobbs Act prohibits robbery
. . . that ‘in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce.’” United States v. Williams, 342 F.3d 350, 353 (4th
Cir. 2003) (quoting 18 U.S.C. § 1951(a)). Thus, to prove Hobbs

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Act robbery, the Government must establish that a robbery
occurred and that it affected interstate commerce. Id.
We hold that the evidence was sufficient to convict
Pindle of Hobbs Act robbery. Raja Anwar testified that he had
four pizzas to deliver to a condominium in Woodbridge, Virginia.
No one answered when he knocked on the door, and he began
walking to his car to call the customer. Two men rushed towards
him. Both men wore gloves, and at least one wore a black mask
and was armed. One of the men demanded both the pizza and
Anwar’s money. Anwar turned over a green pizza bag containing
the four boxes of pizza and about $200. The other robber took
Anwar’s car keys. After the robbers fled, Anwar called the
police.
Officer Marshall Daniel and Yoda, his K-9 partner,
arrived at the scene and conducted a track. Officer Jay
Gutschmidt searched the area where the track ended. He found a
Vocelli’s Pizza receipt and walked to a nearby dumpster, where
he found Vocelli’s Pizza boxes and a green Vocelli’s Pizza bag.
Anwar informed officers that he had often delivered pizzas to a
nearby apartment. The police then went to that address, where
they found Pindle, who pretended to be asleep. During a search
of the apartment, officers recovered clothing similar to that
worn by the robbers, Anwar’s keys, fresh pizza, a mask, and
gloves. Gutschmidt recovered a gun from a rain gutter above the

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apartment’s balcony. During a post-arrest interview, Pindle
admitted that the gun belonged to his father and that he had
taken it to the apartment on a previous occasion.
Nikolas Goodson testified that he, Pindle, McGee Menka
and others were in the apartment on August 20. Pindle produced
a .38 caliber handgun and told the others that he had robbed 7-
Elevens and gas stations. Goodson saw Pindle and another man
leave the apartment and return with pizza. Pindle subsequently
left with the pizza boxes and returned without them. When the
police knocked at the door, Pindle began hiding various items,
including the gun, a mask, and gloves. Goodson saw Pindle place
the gun on the roof above the apartment’s balcony.
This evidence establishes beyond a reasonable doubt
that Pindle committed the robbery. This, coupled with a
stipulation that Vocelli’s Pizza is a “business[] that engaged
in and that affected interstate commerce, and that the robbery
. . . obstructed, delayed, or affected interstate commerce,” was
sufficient to convict Pindle of Hobbs Act robbery.
Firearms Offenses. In order to prove a violation of 18
U.S.C. § 924(c), the Government must prove that the Defendant
(1) used or carried a firearm (2) during and in relation to a
crime of violence. United States v. Nelson, 484 F.3d 257, 260
(4th Cir. 2007). To prove a violation of 18 U.S.C. § 922(g),
the Government must prove that the Defendant: (1) was previously

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convicted of a crime punishable by imprisonment of more than one
year; (2) knowingly possessed, transported, shipped, or received
the firearm; and (3) the possession was in or affected commerce.
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
The evidence was sufficient to convict Pindle of the
§ 924(c) offense. A firearm was used to effect the robbery of
Anwar. Further, the jury could readily infer from Goodson’s
testimony and Pindle’s admission that the gun was his father’s
that it was Pindle who used the firearm during the robbery.
The evidence also was sufficient to convict Pindle of
violating § 922(g). It was stipulated at trial that Pindle was
a convicted felon and that the gun was not manufactured in
Virginia. Further, Pindle admitted that he had possessed the
gun.
II
Pindle next contends that the district court
erroneously refused to give a proffered jury instruction on
identification. We review “the district court’s decision to
give or refuse to give a jury instruction for abuse of
discretion.” United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009), cert. denied, 130 S. Ct. 1551 (2010). In Passaro,
we wrote:

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A district court commits reversible error in refusing
to provide a proffered jury instruction only when the
instruction (1) was correct; (2) was not substantially
covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important,
that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct
his defense. . . . Moreover, we do not view a single
instruction in isolation; rather we consider whether
taken as a whole and in the context of the entire
charge the instructions accurately and fairly state
the controlling law.
Id. (internal quotation marks and citations omitted).
We conclude that the district court did not abuse its
discretion in refusing to give the proposed instruction because
the instruction was not correct. The instruction was predicated
on there having been eyewitness identification of Pindle as the
robber, and there was no such identification.
III
Finally, Pindle argues that the district court erred
in imposing a variant sentence. We review a sentence for
reasonableness, applying an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Seay, 553 F.3d 732, 742 (4th Cir.), cert. denied, 130
S. Ct. 127 (2009). In conducting our review, we first examine
the sentence for “significant procedural error,” including
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider

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the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. “Regardless of
whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted).
Counts Seven and Fifteen were grouped. The offense
level for the group was 20, Pindle’s criminal history category
was V, and his advisory Guidelines range for those counts was
63-78 months. He was also subject to a consecutive eighty-four-
month sentence pursuant to his conviction on Count Fourteen.
Both parties submitted positions on sentencing. Pindle asked
for a sentence below his Guidelines range. The Government
requested an upward departure “based upon conduct represented by
those offenses upon which the jury was unable to reach a
verdict.”
Following argument at sentencing, the district court
found by a preponderance of the evidence that Pindle had
committed the other robberies charged in the indictment. The
court based this finding on the following: the similarities,
including the description of the robber, among the robberies;

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the identification by three robbery victims of Pindle’s voice as
that of the perpetrator; and the fact that the same firearm was
discharged during three of the robberies.
The court found, in light of its determination that
Pindle had committed the other robberies, that a sentence within
the advisory Guidelines range was inappropriate. The court
stated that Pindle was “an extremely dangerous person . . . [who
had] consistently carried a firearm since [he was seventeen]
despite convictions for doing so and being offered the
opportunity for Probation’s support.” Pindle was educated,
employable and able to control his alcohol and marijuana use.
Nonetheless, he had committed the series of robberies during
which two people were shot. The court granted the Government’s
motion for upward departure, moved incrementally through the
Guidelines and determined that offense level 27, criminal
history category V, resulting in a Guidelines range of 120-150
months, was appropriate. The court sentenced Pindle to an
aggregate sentence of 228 months.
We conclude that the sentence is procedurally and
substantively reasonable. Pindle’s advisory Guidelines range
was correctly calculated. The district court considered
Pindle’s argument that certain § 3553(c) factors warranted a
sentence below that range. However, the court concluded that
other sentencing factors necessitated a sentence above that

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range. Finally, the court adequately explained its reason for
imposing the variant sentence.
IV
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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